Academic Advisor Adam Mossoff has written a very important paper shedding light on the nature and constitutional status of patents:

Mossoff, Adam, "Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent 'Privilege' in Historical Context" . MSU Legal Studies Research Paper No. 03-21

This is groundbreaking and very important work, and is particularly deserving of attention from those briefing patent cases for the Supreme Court. In a nutshell,

The conventional wisdom holds that American patents have always been grants of special monopoly privileges lacking any justification in natural rights philosophy, a belief based in oft-repeated citations to Thomas Jefferson's writings on patents.

This is echoed in the many current policy discussions in which patents are referred to as monopolies, and historical material cited in which they are called "privileges." It follows from this treatment that patents should be viewed with skepticism, as utilitarian creatures without any moral dimension.

What Adam has done is the actual historical research into original sources to shed light on what eighteenth and nineteenth century scholars meant by calling patents privileges. It turns out, that lawyers referred to many types of civil rights that helped secured property rights as "privileges." "Privileges" was a legal term of art for rights that did not arise in a state of nature, but that arose when people joined together in societies under a social contract--civil rights. Referring to such rights as "privileges" was not intended at all to disparage them or disconnect them from property rights (as in the "privileges and immunities" clause). Thus he traces nineteenth century case law that treat patents as a form of property, subject to "trespass" and broadly defended.

Nowadays, one again and again runs into the argument that intellectual property has nothing to do with physical property; that they are entirely unlike. That even the phrase "intellectual property" is of recent origin and is misleading. Certainly, it can be. There are important differences between physical and intellectual property. But Adam's paper makes it clear that viewing patents as a form of property is certainly not ahistorical. And it is central to our arguments here are IPcentral (as much as we sometimes disagree with one another) that overlooking the similarities between physical and intellectual property today entirely will lead to very bad policy.

Adam's paper also sheds light on two other problems, disconnected from any debates about IP, but none-the-less worth mentioning.

1) The sad neglect of legal history in the law schools, and the tendency of the legal system to pick up on and amplify errors in interpreting cases of the past. This has arisen again and again--with privacy law, with the Ninth Amendment, and on and on. In my view this arises originally from the fact that law was not an academic discipline like history. It was a trade. Law professors taught the trade, and did not much try to be "academic." Objective historical research was not taken seriously, but only as an addendum to advocacy. Today law schools try to be on a intellectual par with graduate schools in philosophy and history and have little interest in trade problems, but objective research is taken no more seriously. If they want to produce scholarship of lasting and real value, they are going to have to up their standards. I should close by saying that there are important exceptions--true legal scholars--but not enough.

2) The second problem is something the tendency of ideological libertarians (including myself) to underestimate the sophistication of natural rights and social contract theory. It is often accepted by libertarians that rights that do not belong in a state of nature are simply problematic. And a good number of libertarians would dismiss such rights as impossible. But that will not do, because then we must dismiss things like the right to vote, the rights of due process, and so on, as impossible, because all these arise not in a state of nature but in civil society. We might well be cautioned about taking discussions of the "state of nature" too literally. Like "perfect competition" or "zero information costs" in economics, it makes a splendid thought experiment. But in reality the evolution of legal systems and societies is vastly more complex.

posted by Solveig Singleton @ 11:02 AM | Academia, Liberty and IP, Patents, Physical Property

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